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A REVIEW OF KENYA’S INDUSTRIAZATION POLICY AND ITS
EFFECTIVENESS IN LINE WITH THE DIFFERENT LAND USE AND PLANNING
POLICIES: A CASE STUDY OF OWINO UHURU AND BANGLADESH SLUMS IN
MOMBASA.
BY:
REG NO:
This dissertation is submitted in partial fulfilment of the requirement for the award of the degree of
bachelor of Law (LL B) at the School of Law University of Nairobi
JUNE xxxx
1
DEDICATION
For my parents
DECLARATION
2
I, the undersigned, declare that this is my original work and has not been submitted to any other college,
institution or university for academic credit. The secondary sources used in this research have also been
referenced accordingly.
Name: Date:
Signature:
This dissertation has been submitted for examination with my approval as University supervisor.
Supervisor: Date:
Signature:
ACKNOWLEDGEMENT
3
I would like to express my deepest gratitude to Phyllis Omido, the founder of Centre for Justice,
Governance and Environmental Action (CJGEA) who is advocating for the rights of the people of
Owino Uhuru and Bangladesh Slums. Without her vivid explanation on the situation at hand after I
reached out, the completion of this dissertation would have been impossible without her insight on the
matter.
I also sincerely appreciate my supervisor, Dr. Seth Wekesa, whose patience, positive criticism and
valuable guidance have been critical to the end result of this research.
4
ABBREVIATIONS
EIA Environment Impact Assessment
EMCA Environmental Management and Co-ordination Act
EPZ Export Processing Zone
ILO International Labour Organization
NEMA National Environment Management Agency
PPLIP Port Pirie Lead Implementation Program
WHO World Health Organization
5
TABLE OF CONTENTS
DEDICATION…………………………………………………………………………………………………………………………………….i
DECLARATION………………………………………………………………………………………………………………………………...ii
ACKNOWLEDGEMENTS……………………………………………………………………………………………………………………iii
ABBREVIATIONS……………………………………………………………………………………………………………………………..iv
ABSTRACT……………………………………………………………………………………………………………………………………….v
CHAPTER ONE 7
1.1 Introduction 7
1.2 Statement of Problem 8
1.3 Justification of the Study 9
1.4 Research Questions 9
1.5 Research Objectives 10
1.5.1 General Objectives 10
1.5.2 Specific Objectives 10
1.6 Theoretical Framework 10
1.7 Literature Review 11
1.8 Limitations of the Study 12
1.9 Hypothesis 13
1.10 Research Methodology 13
1.11 Chapter Breakdown 13
CHAPTER 2 14
2.1 Introduction 14
2.2 Location of Owino Uhuru and Bangladesh Slums 15
2.3 Setting up of the Battery Recycling Factory 15
2.4 Dawn of Lead Poisoning 16
2.5 The Never-Ending Struggle Beset by Lead Poisoning 18
2.6 Conclusion 19
CHAPTER THREE 21
3.1 Introduction 21
3.2 Constitution of Kenya 2010 21
3.2.1 Introduction 21
3.2.2 Bill of Rights 21
3.2.3 Kenya National Rights and Equality Commission 22
6
3.2.4 Land and Environment 22
3.3 Environmental Management and Coordination Act NO. 8 of 1999 (EMCA) 23
3.3.1 Introduction 23
3.3.2National Environment Management Agency (NEMA) 23
3.3.3 Environmental Impact Assessment (EIA) 26
3.4 Labour Laws 26
3.4.1 Work Injury and Benefits Act 2007 26
3.4.2 Occupational Safety and Health Act 2007 27
3.4.3 The Factories and Other Places of Work Act Cap 514 (Legal Notice No. 31) 27
3.5 Children’s Rights 28
3.6 Conclusion 28
CHAPTER FOUR 29
4.1 Introduction 29
4.2 Port Pirie 29
4.2. 1 Introduction 29
4.2.2 Lead Poisoning in Port Pirie 29
4.2.3 Legal Regulatory Framework 30
4.2.4 Nyrstar Transformation Project 31
4.3 Comparison between Port Pirie and Owino Uhuru & Bangladesh Slums. 32
4.3.1 Form of Settlement 32
4.3.2 Legislation implementations and existing laws 32
4.3.3 Public Awareness and Response 32
4.3.4 Future Plans and Direction 33
4.3.5 Nature of the lead Industrial Pollutants 33
4.4 International Legal Regulatory Framework on Environmental and Human Rights. 33
4.5 Conclusion 34
CHAPTER FIVE 35
5.1 Introduction 35
5.2 Summary of the research 35
5.3 Recommendations 36
5.4 Conclusion 38
BIBLIOGRAPHY 39
7
ABSTRACT
Kenya’s legal regime concerning land has evolved greatly as it seeks to find solutions for the many land
disputes that have existed since over the time. Its achievements include providing an answer for the
land question, division of land, land ownership and inheritance issues. However, there are certain
matters that have not been fully dealt with. Kenya being a third world country, industrialization happens
at a very high rate as there is a need to satisfy the urge of development and economic growth and in the
process the available laws protecting the environment are downplayed and it has resulted to pollution
of the environment and also in the process abusing human rights of the people living in the areas where
the factories are set up. This paper sought to address issues relating to the crisis that the residents of
Owino Uhuru and Bangladesh Slums. They are faced with lead poisoning which could have not been
the case had the available laws regarding setting up of factories and laws on urban planning and zoning
been followed. Since it already happened, it is essential that steps taken to redeem the situation be well
handled. The paper seeks to uphold the rights of the victims of the lead poisoning and in particular
children who were the most affected. It also puts across the various bodies and personnel responsible
and yet not taking any responsibility. The research concludes by giving recommendations on how the
crisis can be salvaged and how the industrialization policy should be amended to be an all-inclusive
legislation.
8
CHAPTER ONE
1.1 Introduction
For the longest time land has been considered as what defines our livelihoods and economic
development in Kenya
1
. Industrialization is mainly pegged on the use of land for it to take
place. After independence, Kenya promoted rapid economic growth the public investment,
encouragement of smallholder agricultural production and incentives for private often
industrial investment
2
.However with the increase in population, development of technology
has led to many conflicting factors when it comes to industrialization and human settlement,
industrialization and wildlife conflicts and destruction of ecosystems. In the quest for
development and raising our standards for living, fundamental we seem to have forgotten that
there are consequences for actions. Industries release waste products that are hazardous to
human health. Those working in industries also face similar effects as they are more exposed
to these chemicals as they interact with them first hand.
Kenya’s Industrialization Policy is geared towards improving the economy forgetting that there
are environmental issues that come along with industrialization. The lack of laws to regulate
industrialization in depth is also an issue of concern. Policies are just frameworks that have no
legal sanctions. There is also an issue of noncompliance with the available laws and bodies
given powers like in this instance NEMA using their powers ultra vires or intra vires. One is
left to wonder whether a balance can be struck between protecting the environment, protecting
human rights and at the same time ensure sustainable development. Owino Uhuru and
Bangladesh Slums are places that have felt the adverse effects of industrialization. A lead
processing battery factory was set up in 2007
3
, it was thought to bring benefits to the people
like employment and development of infrastructure. Instead the waste products released left
the residents of the area with health complications and the environment becoming inhabitable
even after the factory was shut down. Kenyan Law requires and environmental impact
assessment before any activity is done on the environment
4
1
William Robert Ochieng’ ,An Economic History of Kenya (page 32)
2
www.globalsecurity.org/military/world/kenya/economy.htm (last accessed on 15
th
October 2015)
3
The Borgen Project ,RSS2 feed
4
Caitlyn Thompson , Lead Poisoning in Mombasa(2008)
9
1.2 Statement of Problem
Recently there was a documentary of the plight of the people of Owino Uhuru slums
5
who have
been affected by the lead poisoning in their area of residence. This was due to a lead battery
processing factory, the effects of this poisoning has left many dead and others with strange
diseases which are hard to treat. The Kenya Constitution 2010 is keen to provide for the basic
human rights which include access to clean and healthy environment as per article 42.This
clearly has not been well implemented. It was quite evident that laws have been promulgated
but their implementation has not taken place or rather it had been slow. Sometimes laws were
just ignored, other times the need to see laws implemented comes along when adverse effects
of non-compliance with the law occurs.
The laws on land use and urban zoning are clear to state that human settlement areas should be
far away from factories. With time, we find that due to increase of human population there is
encroachment of industrial areas or the opposite happens, industries are set up in human
settlement areas. A change in land uses also brings about this kind of confusion. What can be
done to ensure that even with a change in land uses the environment is still sustainable for
future generations?
The end results of such crashing land uses are that there was destruction of the existing eco
system; people suffered from diseases as a result of industrial pollution and there after many
seek justice for compensation from the state or private developers who are the main
beneficiaries of the factories. It raised a question on whether the fundamental human rights
like right to life
6
, right to access to clean environment
7
were being downplayed. Question on
whether the rights of children concerning being protected from any harm whatsoever is being
adhered to.
1.3 Justification of the Study
There was no concrete law that governs industrialization and as a result many things
surrounding land use are being overlooked. The existence of policies was not enough to deal
with those who break the law as there are no sanctions when policies are not followed.
5
www.theecologist.org.interviews/2831943/lead_poisoning_fighting_industrial_pollution_in_kenya (last
accessed on 9th October 2015)
6
The 2010 Constitution of Kenya , Article 26
7
Article 23
10
1.4 Research Questions
The main question this research sought to address was whether NEMA had fulfilled the
expectations of The Environment Management Conservation Act (EMCA) which gave it the
powers and role of ensuring that land was used in a sustainable manner. In doing so the
questions that arose were:
❖ Were human rights of the people of Owino Uhuru and Bangladesh Slums violated and
to what extent were environmental monitoring bodies responsible?
❖ Have the penalties recommended by the various land use laws been implemented
effectively to tackle the problem in Owino Uhuru and Bangladesh Slums?
❖ Are the existing policies on industrialization comprehensive enough to deal with
sustainable development or should laws be enacted to deal with the same?
1.5 Research Objectives
1.5.1 General Objectives
Kenya being a third world country at the time had many new industries being set up at a high
rate. The study was meant to analyse law(s) that dealt with regulation and assessment of
factories before and after they come into existence and their relationship with both human and
environmental factors.
1.5.2 Specific Objectives
❖ To find out which human rights of the residents of Owino Uhuru and Bangladesh were
violated and to what extent are the various government bodies responsible.
❖ To examine how well the penalties prescribed by the law had been put into use to deal
with Uhuru Owino and Bangladesh Slums menace.
❖ To assess whether the existing policy frameworks on industrialization were able to
bring about the intended purpose or should there be a change in the law.
1.6 Theoretical Framework
Restitution theory deals with the obligations to pay compensation for instance when the court
orders restitution the defendant gives up their gain to the claimant. This theory would best
apply as the people of Owino Uhuru and Bangladesh Slums have lost lives and they have been
11
infected with diseases at the expense of the developers who have gained profits from the
factory. Restitution encourages self-discipline, internal control of behaviour and respect for
self and others which in this case would be the founders of the Lead Factory respecting the
rights of the people living around the factory. Regulation has been defined as the use of legal
mechanisms in implementing socio-economic policy objectives
8
.This theory would apply in
the sense that there was supposed to be adequate regulation looking into the factory setting up
and checking the standards and looked into the aftermath of it doing business.
The public interest theory was first developed by Arthur Cecil Pigou and it holds that a
regulatory body is considered to represent the interests of the society in which it operates rather
than private interests of regulators. The regulators are seen as benevolent; having an aim of
pursing public interest
9
. This theory applies in the sense that the case of Uhuru Owino and
Bangladesh Slums is the first public litigation to be filed involving 3,000 people from 580
households including former workers
10
. It has the interest of the general public and the research
proposes better laws to mind the interests and affairs of the general public. The needs and wants
of private people like in this case the private developers of the lead processing factory will be
overlooked for the sake of the majority. The Internal Control Theory which is based on the
belief that all behaviour is internally motivated, our behaviour in any situation is our best
attempt to meet one or more of our five basic needs
11
which in this case would be survival. The
people of Uhuru Owino and Bangladesh slums are fighting for their survival as their lives have
been endangered by pollution by the Lead Factory.
1.7 Literature Review
Not much has been written on the issue of industrialization in Kenya. Authors have been keen
on writing on the issues of development in terms of opening up Kenya as a place for
development for instance Prof Ben Sihanya in this article ‘ Opening sources for Kenya’s
Development’ talks of how we can open up our country for development without letting others
8
Johan den H Review of Economic Theories of Regulation (Tjalling Koppmans Research Institute 2010)
9
Richard A Posner, ‘Theories of Economic Regulation(Vol 5 No. 2 Autumn 1974) 335-358Bell Journal of
Economics and Management Science
10
Phyllis Omido , Goldman Environmental Award Winner
11
www.district196.org/ep/AboutEp/Restitution.cfm (last accessed on 19
th
November 2015)
12
take advantage of us. With regards to lead poisoning, Dr Herbert L Needleman in his article
‘History of Lead Poisoning in the World’ he stated the lead poisoning is not only an
environmental disease, but it is also a disease of lifestyle
12
. He goes on further to state that
Lead’s toxicity was recognized and recorded as early as 2000BC and the widespread the
widespread use of lead has been a cause of endemic chronic plumbism in several societies
throughout history.
Angela Mathee in her article , ‘Towards the prevention of lead exposure in South Africa :
Contemporary and emerging challenges’ states that African Children have been identified as
group at particular risk of exposure ,often simultaneously, to multiple sources of environmental
lead
13
. The recent incidents in Kenya, Namibia and Senegal are clear indicators that it is true.
Fertility of those in child bearing stage also gets interfered with as men become impotent and
women suffer from infertility. Those women who were lucky to conceive end up having still
births. According to World Health Organization (WHO), one third of Africa’s disease burden
is attributable to environmental hazardous
14
. Kenya was not an exempt from these results.
Lead is a naturally occurring heavy metal; exposure is associated with several adverse effects
across different population subgroups
15
this we can relate with Uhuru Owino slums here in
Kenya. Many of those affected by lead poisoning were children. Exposure happens even before
birth and hence it has adverse effects.
The Njonjo Land Commission which was an inquiry of Land Laws systems emphasized on a
need for a land system economically efficient, socially equitable and operationally accountable
to the Kenyan people. Which brought us to the question of whether this has been the case in
our current land system. A report by the Standard Digital News dated 29
th
April 2015, The
National Environmental Management Authority (NEMA) shifted blame over to operations of
the company based in Uhuru Owino Slums to the Mombasa District Officer John Ndungu
16
.
This clearly shows that nobody wanted to take blame for the lead poisoning. Whose fault it is
still remained unanswered. The issue of compensation of victims especially children affected
by industrial wastes had not been well ventured into and hence many loop holes.
12
www.lead.org.au/history_of_lead_poisoning_in_the_world.htm (last accessed 15
th
November 2015)
13
Ibid
14
Ibid
15
Ibid
16
www.standardmedia.co.ke/ktn/mobile/video/watch/2000092178 ( last accessed on 14th November 2015)
13
1.8 Limitations of the Study
The research was limited to the case of Uhuru Owino and Bangladesh slums which was related
to lead poisoning hence it may leave out other areas affected by adverse effects of
industrialization which in this case is pollution. The research did not also focus on the whole
Industrialization Policy which may have other gaps or areas that need to rectified. Time and
lack of resources to conduct the research restricted fieldwork being done and as a result the
research did not cover all the issues that needed to be addressed.
1.9 Hypothesis
The lack of specific laws regulating industrialization and development has brought about vices
like pollution of the environment which in turn has led to violation of human rights.
1.10 Research Methodology
The research methods that were be used in this study will be qualitative methods that will
included library research and internet searches. The library research will entailed examining
the work of other authors on issues relating to development, human rights and industrialization.
Newspaper articles, journals, reports and press releases concerning lead poisoning were also
used in the research. Internet searches constituted documentaries and interviews on the subject
matter of the report were used. The use of judicial decisions was also included in the research.
1.11 Chapter Breakdown
The research chapter breakdown was as follows:
Chapter one dealt with the introductory part of the research. It dwelt on the statement of the
problem and the justification of the study.
Chapter two consisted of the description of the situation at hand in Uhuru Owino and
Bangladesh Slum; the problems experienced by the people living in the area.
Chapter three constituted the legal issues that surrounded the whole issue, that is the rights of
the people and in particular children affected by lead poisoning and the land laws that should
have been followed when setting up the Lead processing factory. Issues dealing with the lack
of adequate laws were also discussed.
14
Chapter four compared Kenya’s Uhuru Owino and Bangladesh Slums to Australia’s Port Pirie.
The two have a history of lead poisoning. The research assessed the legal framework in both
and what each would borrow from each other .It also sought to reach a conclusion on whether
Kenya can borrow from Australia’s legal system. The chapter also tackled the International
Framework available with regards to the matter at hand.
Chapter five concluded the research. It comprised of recommendations. Whether the law
should change, its implementation and how to fill the loop holes in the existing legislation.
CHAPTER 2
2.1 Introduction
This chapter will dive in deeper to the scenario in Owino Uhuru and Bangladesh slums. The
whole lead poisoning situation from when it began to the current situation will be well laid out
in this chapter.
15
2.2 Location of Owino Uhuru and Bangladesh Slums
Owino Uhuru and Bangladesh are slum areas in in the western side of the coastal town of
Mombasa adjacent to a lead battery recycling factory
17
. The Metal Refinery EPZ is located 50
metres away from the slums. The city of Mombasa is one of the major urban areas along the
Kenya Coast that has in recent times seen considerable industrial development and population
increase. Some of the industries however, cause serious environmental and human health
degradation. In particular, the Metal Refinery Export Processing Zone; an industry which
manually extracts lead metal from used car batteries. Mombasa has a warm tropical climate.
The amount of rainfall depends essentially on seasons and is influenced mainly by large-scale
pressure system of the Western Indian Ocean and monsoon winds
18
.Lead is a naturally
occurring metal found in small amounts in rock and soil. Lead has been used industrially in the
production of gasoline and car batteries. In the past, automotive sources were the major
contributors of lead emissions to the atmosphere. After leaded motor vehicle fuels were phased
out by 2005 in Sub-Saharan Africa
19
the contribution of air emissions of lead from the
automotive sector greatly declined. Today, industrial processes primarily metal processing
account for a large portion of lead emissions to the atmosphere and the highest levels of
airborne lead are usually found near operations that process materials containing lead
20
. Lead
has no known essential role in living organisms and is toxic at even low concentrations
21
2.3 Setting up of the Battery Recycling Factory
Lead acid has globally paved way to the success of recycling batteries
22
.The acid later on emits
lead to the atmosphere. The process of recycling batteries is simple and cost effective as lead
is easy to extract and can be reused multiple times and it is a profitable business. The smelter
in Mombasa which recycled batteries began operating in 2007. It salvaged the lead from old
car batteries. Contrary to Kenyan Law, the plant began operating even before it had carried out
17
IPEN-ISIP Project, Lead Poisoning in Mombasa, Kenya.
18
Weather and Climate : Mombasa, Kenya < www.weather-and-climate/Mombasa > ( accessed on 15
th
January
2016)
19
Mungatana, E. D., (2004): Policy Instruments for the lead phase out in Kenya; A research
project proposal: Centre for Environmental Economics and Policy Analysis in Africa,
department of Agricultural Economics, University of Pretoria
20
Ibid
21
Gottesfeld, P, and Pkhrel, AK. Review: Lead exposure in battery manufacturing and recycling in developing
countries and among children in nearby communities.
22
www.batteryuniversity.com/learn/article/recycling_batteries (accessed on 9th January 2016)
16
an Environmental Impact Assessment
23
. NEMA oversees all land use activities in areas of
agriculture, forestry, water, wetlands management and wildlife protection in order to ensure
that land use planning and land use principles are effectively applied and adhered to which was
not the case in this scenario. The residents of the slums were quick to get jobs in the factory
and most of the workers earned an annual salary of $2,220
24
which was quite promising for
people who are used to living in abject poverty. Although it is not clearly known who the
owners are, it is important to note that the factory was set up under private ownership as the
government has not yet put any claim of ownership to it.
2.4 Dawn of Lead Poisoning
Low levels of lead exposure usually have no obvious or immediate symptom, which means it
can go undetected. But over time, even low levels of lead in blood can have profound effects
on the brain and nervous system. The discovery of lead poisoning in Owino Uhuru was made
by Phyllis Omido
25
who studied Business Administration at the University of Nairobi and
worked in Industries in Kenya for more than fifteen years
26
. While working in the smelter,
she commissioned an Environmental Impact Assessment (EIA). The findings showed that the
plant was releasing lead into the environment. As a Community Relations Officer she
recommended that the smelter close down and reopen elsewhere which was not an idea
welcomed by her superiors. After discovering in 2009 that her son was sick from lead
poisoning, Phyllis Omido, a former office worker in the smelter now began organizing
residents to write letters to the Public Health Agency and the National Environmental
Management Agency (NEMA) informing them of the situation. After waiting for months for a
government response, she organized peaceful protests in the streets of Mombasa.
Many saw the smelter as a job opportunity and were quick to seek jobs there not knowing that
it caused more harm than good to them. According to a report by the World Health
Organization, lead battery production and recycling are now the most significant source of lead
exposures
27
. Average exposure levels in children residing near battery plants in developing
23
www.observers.france.com/en/20140626 (accessed on 20th January 2016)
24
Ibid.
25
2015 Goldman Environmental Award Winner
26
Miss Phyllis Omido , Centreforge.com
27
www.who.int/mediacentre/factsheets/fs379/en (accessed on 1st February 2016)
17
countries are four times the current concern that the organization established
28
. Young children
are particularly vulnerable because they absorb four to five times as much ingested lead as
adults from a given source
29
.This is the case in Owino Uhuru as children are known to have an
innate curiosity and their hand-to-mouth behaviour result in their mouth and swallowing lead-
containing or lead-coated objects
30
. Former workers in the smelter described working in toxic
conditions with little or no protective gear. Several workers said that managers openly told
them that they were going to die because of the dangerous nature of the work, yet offered
neither adequate protective gear nor medical treatment
31
.Most of the workers fell ill due to
inhalation of lead particles generated by burning materials containing lead for example during
smelting and the informal recycling of the lead batteries. Water is a major necessity for the
survival of living things, the residents of the two slums ingested lead-contaminated water from
the pipes as the release of pollutants from the smelter to the environment contaminated all
things existing in the area. Usually, the nature of informal settlements as it is in the two areas
is that there is poor sanitation, and the housing is not well organised hence there are very high
chances of getting lead poisoned. The smelter realised untreated wastes and hence it gradually
got to the residents. Children playing in the water pools became susceptible to getting diseases
related to lead poisoning. In many countries Kenya being one of them, children are exposed to
toxic waste in the work place. According to the International Labour Organization (ILO), some
children scavenge rubbish dumps, where they may be exposed to discarded batteries which are
a source of lead poisoning
32
. This was the scenario especially in Owino Uhuru as children were
more exposed to the untreated waste released by the smelter.
A government investigation that began in 2009 found that the smelter had violated numerous
laws and that its operations were endangering the health of workers and the residents. Although
the smelter was closed briefly it reopened with few changes to its operations. The smelter
28
www.aljazeera.com/news/africa/2014/08/kenya-lead-poison201481114402134794.html/ (accessed on 1
st
February 2016)
29
Ibid
30
Yasmin E. Von Schirnding and Richard F Fuggle , ‘A Study of the Distribution of Urban Environmental Lead
Levels in Cape Town ,South Africa’ ,Science of the Total Environment 188, no. 1 (1996) page 6
31
https://www.hrw.org/news/2014/06/24/kenya-toxic-lead-threatening-lives (accessed on 1st February 2016)
32
International Programme on the Elimination of Child Labour and the Statistical Information and Monitoring
Programme on Child Labour, Every Child Counts (2006)
18
operated in 2007 to 2014, despite evidence described in the government 2009 report that it
endangered the lives of the residents
33
.
2.5 The Never-Ending Struggle Beset by Lead Poisoning
Life has never been the same again for the residents of Owino Uhuru and Bangladesh slums as
soon as the lead poisoning began. The residents of the two slum areas and to some extent the
whole of Mombasa County face a tragedy that will not go away for generations to come. A
major issue to note with regards to lead as a pollutant is that its effects on the environment and
human beings are irreversible as lead cannot be wiped off completely
34
.Since the smelter began
operations in 2007; residents in Owino Uhuru said that they have experienced an increase in
miscarriages and impotence. The parents told Human Rights Watch that their children always
seem sick
35
. Blood tests performed on some children in the community in 2009 found high
levels of lead. No significant local source of lead has been identified other than the smelter
36
.
In early 2014 the smelter closed its operations next to Owino Uhuru and moved elsewhere.
Although the smelter is no longer polluting Owino Uhuru, the toxic effects of lead remain in
the community. Children have not been tested for lead poisoning and still live in contaminated
homes. Children and workers who were exposed to high levels of lead have not received
medical treatment. The families of those workers who died have not received any
compensation. The Kenyan government has strong environmental laws and regulations meant
to protect citizens from environmental degradation and harm. The Environmental Management
and Coordination Act has regulations preventing industries from releasing toxic effluent and
from polluting the air, and specifies that an Environmental Impact Assessment must be
undertaken before operations can begin
37
. According to the Environmental Management and
Coordination Act, those responsible for pollution that causes either people or the environment
harm will face imprisonment or financial penalties
38
. The implementation of this provision has
not yet been brought to a realization. At least three workers at the smelter have died from lead
33
Human Rights Watch Press Release, Washington DC; Kenya : Hope for Kenya’s Lead Poisoning Victims(13
th
August 2014)
34
The Facts About Lead Exposure and Its Irreversible Damage ,
< www.mobile.nytimes.com/2016/01/30/us/lead-poisoning.html >
35
Ibid
36
https://www.hrw.org/news/2014/06/24/kenya-toxic-lead-threatening-lives (accessed on 1
st
February 2016)
37
http://www.nema.go.ke ( accessed on 1
st
February 2016)
38
Ibid
19
poisoning, and the community of 3,000 people remains contaminated. The government should
provide lead poisoning testing, clean up homes and public spaces in the community.
According to Environmental Defense and the Alliance to End Childhood Lead Poisoning,
exposure to lead remains the main environmental problem for young children in developing
countries
39
. Lead exposure has been known to cause anaemia, kidney disease, hearing damage
and impaired infertility, at high levels it results in coma or death
40
; all these is what the residents
of the two areas have been experiencing. Treatment of the lead poisoned persons has proven to
be yet another struggle that the residents are enduring. It is important to note that treatment is
very expensive
41
and the people in this area can hardly provide for their meals.
2.6 Conclusion
This chapter gives in summary a vivid description of the crisis of the people of Owino Uhuru
and Bangladesh have been experiencing. Their suffering and tribulations are well explained as
well how the existing laws were downplayed. There is need for immediate actions to been taken
to handle the injustices. The residents of these two areas need urgent medical care that is fully
funded as it is quite clear that they hardly have enough to cater for their basic needs and it is
only fair that they get adequate compensation. Kenya is a member of many international treaties
that advocate for human rights and the preservation of environment to ensure sustainable
development. Ignoring lead poisoning would be going against everything that we have all
signed up for as a state both locally and in the international sphere. The government could have
avoided the massive environmental contamination and related deaths if local and national
officials had followed their own laws.
CHAPTER THREE
3.1 Introduction
This chapter covers the legal aspects of the injustices that were and still are in Owino Uhuru
and Bangladesh areas. How the law should have handled the situation will also be included in
39
The Alliance to End Childhood Lead Poisoning (AECLP)and Environmental Defense(ED) ; Global Dimensions
on Lead Poisoning : An Initial Analysis (2002)
40
Helen Gavaghan , ‘Lead , Unsafe at Any Level’ Bulletin of the World Health Organization 80 , no 1 (2002)
page 82
41
Ibid
20
the discussion. Any acts of commission or omission done by the people given mandate by the
law to handle such situations and was not used appropriately will be discussed.
3.2 Constitution of Kenya 2010
3.2.1 Introduction
It was promulgated on 27
th
August 2010 during the reign of Hon. Mwai Kibaki
42
. The
Constitution addresses political patronage, gender disparity, it has helped tackle issues
regarding to land grabbing and solve land injustices, issues that have affected Kenya since
independence have been solved through it and others are still in the process of getting solved.
3.2.2 Bill of Rights
Under the Bill of rights, every person is equal before the law and has the right to equal
protection and equal benefit of the law
43
; but as it turns out the residents of Owino Uhuru have
not enjoyed this right. As equality includes full and equal enjoyment of all rights and
fundamental freedoms
44
the people in these areas have not been able to get this fully because
they seem to be enjoying some human rights while other human rights are being abused at the
same time. Phyllis Omido in the fight against eradicating the smelter for the area was faced
with so many challenges that brought about infringement of her rights and freedoms as a
person. Once she talked to her superiors on the danger that the factory caused, they did not
agree with her and they even went ahead to scare her and her son from her home but they
managed to escape
45
. They tried to prevent her from exercising her freedom of expression
which included freedom to seek, receive or impart information or ideas
46
. Her plan being to
create awareness to the people on the danger that the recycling smelter would bring to them
was being sabotaged.
42
Mac Jordan, ‘A Promulgated Constitution- A New Beginning For Kenya’ 5
th
September 2010
43
Constitution of Kenya 2010, Equality and freedom from discrimination , Article 27(1)
44
Constitution of Kenya , 2010 Article 27(2)
45
www.aljazeera.com/news/africa/2014/08/kenya-lead-poison201481114402134794.html/ (accessed on 1
st
February 2016)
46
Constitution of Kenya 2010 , Freedom of Expression, Article 33(a)
21
3.2.3 Kenya National Rights and Equality Commission
This commission is established under article 59 of the Constitution. Its functions are to promote
respect for human rights and development of a culture of human rights in the Republic
47
.
Among the human rights infringed in Owino Uhuru and Bangladesh is the right to a clean and
healthy environment
48
; as the residents of the area have been subjected to a toxic environment
that is not suitable for human habitation. The Commission is also tasked with the responsibility
of ensuring that it promotes the protection and observance of human rights in public and private
institutions
49
. It is evident that the commission failed in this task as the workers of the smelter
were subjected to work in unreasonable working environment which goes against the provision
given by the Constitution that every worker has the right to reasonable working conditions
50
.
They were working in a toxic environment and hence it failed in ensuring that their rights were
upheld. Kenya National Human Rights and Equality Commission has not been actively
involved in the human rights issues arising from the lead poisoning as directed by the
Constitution ; on its own initiative or on the basis of complaints investigate or research a matter
in respect to human rights and make recommendations to improve the functioning of state
organs
51
. There were any complaints concerning the smelter but the commission has not yet
acted and as a result failed to exercise its duties and powers.
3.2.4 Land and Environment
The provisions of land and environment are provided for in Chapter Five of the Constitution.
Land in Kenya shall be held, and managed in a manner that is equitable, efficient, productive
and sustainable, and in accordance with the following principles
52
; sustainable and productive
and management of land resources
53
. Land in the two areas was not used in a sustainable
manner. The toxicity of the region made it inhabitable for future generations as lead does not
completely disappear in environments that it poisons. With regard to land use and planning,
the National Land Commission is tasked with monitoring and having oversight responsibilities
over land use planning throughout the country
54
which means it failed in exercising its powers
to oversee the land use activities in Owino Uhuru and Bangladesh. The State also failed in
47
Constitution of Kenya 2010, Article 59(2a)
48
Article 42
49
Article59 (2c)
50
Constitution of Kenya , 2010, Labour Relations , Article 41 (2b)
51
Article 59 (f)
52
Constitution of Kenya , 2010 , Principles of Land Policy , Article 60
53
Article 60 (1c)
54
Article 67 (2h)
22
ensuring these two areas were not polluted as it did not exercise its mandate to eliminate
processes and activities that are likely to endanger the environment
55
. The people of Owino
Uhuru and Bangladesh are protected by the Constitution as it provides for court redress should
the right to a clean and healthy environment as provided by Article 42 be denied
56
.Which
means that they should seek justice from the court system as they are entitled to it.
3.3 Environmental Management and Coordination Act NO. 8 of 1999 (EMCA)
3.3.1 Introduction
Due to the many activities happening on land, there have been many issues of environmental
concern that have risen and such are the things that contributed to the enacting of legislation to
govern and oversee that the environment is not depleted; The Environmental Management and
Coordination Act being one of them. The dominant legal feature translates policies for limiting
harmful behavior through standard setting and regulatory forms of legal contracts which led to
the formation of the National Environment Management Agency.
3.3.2National Environment Management Agency (NEMA)
EMCA provides for the establishment of an appropriate legal and institutional framework for
the management of the environment and related matters. “The environment” in the
Environmental Management and Coordination Act (EMCA) No. 8 of 1999 includes the
physical factors of the surroundings of human beings including land. Environmental
management simply refers to the exploitation of natural Resources in a rational, balanced and
integrated manner to prevent waste, over depletion and degradation of natural resources and
pollution both of the soil and water. NEMA oversees certain land use activities in the areas of
agriculture, forestry, water and wetlands management and wildlife protection in order to ensure
land use planning and land use principles are effectively applied and adhered to
57
. NEMA is a
corporate body with perpetual succession and a common seal capable of
58
:
● Suing and being sued. This means that the people of Bangladesh and Owino
Uhuru Slums can sue NEMA for failing to protect their rights
55
Constitution of Kenya 2010, Environment and Natural Resources , Article 69(g)
56
Article 70 (1)
57
www.nema.go.ke/index.php/about-us/establishment ( accessed on 10
th
February 2016)
58
Environmental Management and Coordination Act (EMCA) No. 8 of 1999 , Section 7
23
● Taking, purchasing, charging and disposing of movable and immovable
property ,Borrowing money
● Contracting
● Doing or performing all such other things or acts for the proper
administration in compliance with the Environmental Management and
Coordination Act (EMCA) and any other thing which may lawfully be
performed by a body corporate.
It has its headquarters in Nairobi but it has offices in other parts of the country. The authority
has Provincial and District Environment Committees established under section 29 of EMCA
and whose main function is to be responsible for the proper management of the environment
within the province or district in respect of which they are appointed. These committees help
NEMA to carry out its functions more efficiently and effectively. They have devolved to all
the 47 counties in the country. NEMA is a supreme body on all matters that are related to
environment and they work with other lead agencies that are directly involved in the
sustainability of the environment
59
. This goes ahead to prove that NEMA had the mandate to
stop the smelter from starting its operations. It is in their roles to ensure that they are aware of
all the environmental issues that are taking place and also those that are intended to happen in
future. In the case Waweru v Republic
60
where it was held that the judiciary is also a crucial
partner in promoting environmental governance, upholding the rule of law and in ensuring a
fair balance between environmental, social and developmental consideration through its
judgments and declarations and NEMA has a role in ensuring that cases that involving the
environmental pollution are brought to the attention of the court.
The roles of NEMA as per Section 9 of the EMCA with relation to the situation in Owino
Uhuru and Bangladesh slums are as follows:
● Coordinating the various environmental management activities being undertaken by the
lead agencies
61
. This means that should NEMA act hand in hand with agencies that
control land in order to ensure that laws are followed.
59
Waweru v Republic (2007) AHRLR 149 (KeHC 2006)
60
http://www.chr.up.ac.za/index.php/browse-by-subject/339-kenya-waweru-v-republic-2007-ahrlr-149-kehc-
2006-.html (accessed on 27
th
March 2016)
61
EMCA section 9(i)
24
● Promote the integration of environmental considerations into development policies,
plans, programmes and projects, with a view to ensuring the proper management and
rational utilization of environmental resources, on sustainable yield basis, for the
improvement of the quality of human life in Kenya.
62
In this case NEMA is given the
responsibility to ensure that a balance is struck when it comes to development and the
conservation of the environment.
● To establish and review land use guidelines.
63
Had NEMA done this on time, the
smelter would have been moved elsewhere away from human settlement or the
residents of these areas would have been relocated and that way collateral damage
would have been reduced.
● Carry out surveys, which will assist in the proper management and conservation of the
environment
64
, which should have been the case in Owino Uhuru and Bangladesh
before permits were given to start the battery smelter.
● Undertake and coordinate research, investigation and surveys, collect, collate and
disseminate information on the findings of such research, investigations or surveys
65
.
● Monitor and assess activities, including activities being carried out by relevant lead
agencies, in order to ensure that the environment is not degraded by such activities.
Management objectives must be adhered to and adequate early warning on impending
environmental emergencies is given
66
. NEMA failed to play this role as it did not asses
the activities being done by the lead factory early enough do as too prevent extensive
environmental pollution.
● Undertake, in cooperation with relevant lead agencies, programmes intended to
enhance environmental education and public awareness, about the need for sound
environmental management, as well as for enlisting public support and encouraging the
effort made by other entities in that regard
67
. NEMA should have taken it upon itself to
62
EMCA Section 9(ii)
63
EMCA , section 9(iv)
64
EMCA, Section 9(vi)
65
Section 9(ix)
66
Section 9 (xiii)
67
Section 9(xiv)
25
educate the people of Owino Uhuru and Bangladesh slums about lead poisoning but
instead, Phyllis Omido a former employee of the smelter did the work for them.
● Render advice and technical support, where possible, to entities engaged in natural
resources management and environmental protection, so as to enable them to carry out
their responsibilities satisfactorily
68
.
● Prepare and issue an annual report on the State of Environment in Kenya and in this
regard, may direct any lead agency to prepare and submit to it a report on the state of
the sector of the environment under the administration of that lead agency
69
. NEMA
failed to include the issue of lead poisoning in the two areas and only did so later on
after the damage had already been done. The smelter started its operations in 2007 and
NEMA released its report on the smelter two years later.
3.3.3 Environmental Impact Assessment (EIA)
EMCA grants NEMA, extensive power to control private land use in the interest of
environmental management and sustainable development. Through its Environmental Impact
Assessment process, it has been able to restrict a wide variety of land uses in the interest of
protecting the environment. The EIA process is important for NEMA as an organization – not
only because it generates revenue, but because it is a central aspect of the organization’s
authority: Without NEMA’s approval there is no EIA, and without an EIA there is (in principle)
no project. The smelter in Owino Uhuru began its operations before an Environment Impact
Assessment test was done
70
hence causing harm to the environment and going against the laws.
3.4 Labour Laws
3.4.1 Work Injury and Benefits Act 2007
This is an act of parliament that provides for compensation to employees for work related
injuries and diseases contracted in the course of their employment and connected purposes.
This ensures that employees who suffer injuries get remuneration. This Act shall apply to all
employees, including employees employed by the Government, other than the armed forces, in
68
Section 9(xvi)
69
Section 9(xvii)
70
https://www.hrw.org/.../kenya-toxic-lead-threatenining-lives (accessed on 16th March 2016)
26
the same way and to the same extent as if the Government were a private employer
71
. The
second schedule of the act
72
which describes occupational diseases in part one indicates that
lead is an occupational disease. This means that the former workers of the smelter are entitled
to compensation as lead poisoning is an occupational disease that resulted from being exposed
to lead fumes and dust as they worked in the smelter. In the case US v Elias (Idaho 2002)
73
the
employer gave orders to his employees that they clean up storage tank containing cyanide and
that they dump the smudge to the environment. This was brought to the attention of the court
and he was convicted for seventeen years on the basis that he endangered the lives of his
employees and illegally disposing of industrial waste to the environment. He was also ordered
to pay a clean-up cost for the pollution he caused on the environment and also to compensate
his workers for endangering their health. The same would apply for our situation, the workers
of the smelter should be compensated for the health problems that they are facing, and the
owners of the smelter should also be ordered to pay a clean-up cost in order to eradicate the
lead poisoning in Owino Uhuru and Bangladesh Slums.
3.4.2 Occupational Safety and Health Act 2007
Its functions as the primary law for reinforcing employer obligation to provide a safe work
environment, with particular emphasis on ‘Work Place Safety’ where employees are exposed
to hazardous substances, complex machinery and dangerous conditions
74
. It requires that
employers log workplace accidents and fatalities, and provides stiff fines and penalties for
employers who ignore their obligations under workplace safety principles. This act comes in
handy in dealing with upholding the rights of the workers in the smelter as they were subjected
to unsafe working environment and were not even provided with protective working gear which
resulted to them being exposed to lead poisoning
3.4.3 The Factories and Other Places of Work Act Cap 514 (Legal Notice No. 31)
This act states that the occupier of every factory shall establish a Safety and Health
Committee
75
whose role will be to conduct safety and health inspections at least once in every
three months
76
. The lead battery factory did not have such a committee which went against the
71
Work Injury and Benefits Act , section 3
72
Work Injury and Benefits Act , 2
nd
Schedule page 40
73
http://caselaw.findlaw.com/us-9th-circuit/1404836.html (accessed on 20th March 2016)
74
Occupational Safety and Health Act, section 6(3)
75
Cap 514 , Section 4(1)
76
Cap 514 ,section 6(b)
27
law and things like identifying occupational hazards and cases of ill health among the workers
at the work place
77
was not properly addressed. Communication between the management and
the workers was minimal and so the ill health of the workers affected by lead fumes was not
brought to their attention as there was no safety and health committee as stipulated by the law.
3.5 Children’s Rights
Overall child mortality declined significantly in the 1990s, but the environmental hazards still
kill at least 3 million children under the age of 5 every year
78
. Such children comprise more
than 40% of the population of people who are suffering from health problems related to the
environment
79
. As countries purse economic development, the increased exposure to chemical
hazards may worsen and it even gets to its worst case scenarios when it comes to children.
Children in Owino Uhuru and Bangladesh slums were the worst hit by the lead poisoning.
Children’s Act does not clearly stipulate the protection of children from hazardous wastes
products but instead mainly dwell on the well-being of the child in terms of education and
parenting of the child. The rights of the children in Owino Uhuru are protected under the bill
of rights. It is clear that there is no sufficient legislation protecting children against health
hazards related to environmental pollution.
3.6 Conclusion
In conclusion it is clear that NEMA failed to do what it has been tasked with by EMCA. Its
powers to control and assess activities on land were not used fully and as a result there was
catastrophic effect on land in Owino Uhuru and Bangladesh slums which also affected the
residents of the area negatively. The shifting of blame between the NEMA officials should stop
as they are all to blame for the outcome in the two areas. Other Commissions like the National
Land Commission and Kenya National Rights and Equality Commission did not exercise their
powers adequately to prevent the situation from occurring.
77
Cap 514, Section 6(d)
78
United Nations Environment Programme (UNEP) , New York , 2002 ‘Children in the New Millennium’
79
Ibid
28
CHAPTER FOUR
4.1 Introduction
This chapter consists of a brief introduction about Port Pirie and how it came into being. A
comparison between Kenya’s Owino Uhuru and Bangladesh Slums to Australia’s Port Pirie
will also be covered. Existing international legal regulatory framework on environment and
people with regards to release of hazardous industrial waste products will be discussed.
4.2 Port Pirie
4.2. 1 Introduction
Port Pirie is a small provincial city with a population of approximately 14,000 people situated
230 kilometres north of Adelaide
80
. It was originally developed as a grain port but later on the
lead smelting and refining took over.
4.2.2 Lead Poisoning in Port Pirie
Port Pirie is a primary lead smelter which also has the flexibility to treat a small range of other
metal bearing feed material. Port Pirie is one of the world’s largest primary lead smelting
facilities and the third largest silver producer, which allows it to benefit from significant
economies of scale
81
.The efforts of the lead smelting have however been downplayed by the
fact that there have been health concerns raised for more than a decade now. A 1925 South
Australian Royal Commission on Plumbism (lead poisoning) identified that the principle cause
of poisoning was fine lead dust Government officials had argued in the 1980s and 1990s that
historical lead-smelter dust-emissions held in the city’s soils and home environments were the
primary cause of elevated blood lead in children
82
Just like Kenya , the issue has not been given
much concern by the government but at least residents have been advised to wash their hands
to prevent more contamination from the lead fumes. However, Lead contamination in children
continues to been their rise and children have levels of lead in their blood
83
. Adults who have
been living in Port Pirie since childhood have been found to have low cognitive skills and the
80
Environmental Research Letters : 10(2015) 055001
81
Ibid
82
http://theconversation.com/lead-poisoning-of-port-pirie-children-a-long-history-of-looking-the-other-way-
8296 (accessed on 26th March 2016)
83
Mathew Doran , ‘Lead concern in Port Pirie children: Cohort study giving researchers a long-term view’
29
amount of lead in their blood streams higher than those of adults who relocated to the town at
a mature age. The National Pollutant Inventory identifies lead as the most pollutant in the
region of Port Pirie
84
4.2.3 Legal Regulatory Framework
Australia is a federation of six States which, together with three self-governing territories that
have their own constitutions, parliaments, governments and laws
85
.The environmental laws
that govern Port Pirie include the following:
● Environmental Protection Act 1993
The act provides for each person in the ACT to take all practicable and reasonable steps to
prevent or minimise environmental harm or environmental nuisance their actions might cause.
This means that all Australian people have a duty to protect the environment. There is also a
legal obligation by those carrying out non-domestic activities to report any significant
environmental harm caused by their actions. It also establishes the Environmental Protection
Authority
● Port Pirie Smelting Facility (Lead –in-air concentrations) Act 2013
The pollutant that haunts Port Pirie is the Lead fumes. This act was enacted for the purposes of
regulating variation of condition and application of laws relating to lead emissions in respect
of a smelting facility at Port Pirie. It provides for the reduction of maximum lead in air as
conditioned by the Environmental Protection Authority
86
.It main aim is to work hand in hand
with other legislations to reduce lead fumes from getting into the environment.
● National Environmental Protection Council ( South Australia) Act 1995
Since Port Pirie is in the coastal area, there was a need to protect the area from pollution and
maintain the ecosystem of the place and hence the National Environmental Protection Council
(South Australia) was formed. The act gives provision for national environmental protection
guideline and measures
87
which are maintained at the highest levels. The act also states that the
84
http://www.npi.gov.au/lead.measures.pollution (accessed on 26th March 2016)
85
www.australia’ssystem.of.government.com (accessed on 27
th
March 2016)
86
Port Pirie Smelting Facility (Lead –in-air concentrations) Act 2013 , Section 4
87
National Environmental Protection Council(South Australia)Act, section 14
30
national government is in charge of ensuring that all laws set up for the protection of the
environment are fulfilled
88
.So as to ensure that environmental protection laws are not
unreasonable the act provides for general consideration in making national environmental
protection measures
89
whose principles are based on simplicity, efficiency and effectiveness of
the set measures.
4.2.4 Nyrstar Transformation Project
The Nyrstar Port Pirie Transformation project will deliver an innovative and sustainable
solution to the current environmental and technical challenges facing the Nyrstar Port Pirie
operation. Nyrstar has reached an in-principle funding and support agreement with the South
Australian and Commonwealth Governments to redevelop the Port Pirie smelter (the
“Transformation”)
90
. The Transformation, subject to feasibility studies, would include
investment in new technology to upgrade the facility to an advanced poly-metallic processing
and recovery facility capable of processing a wide range of high value, high margin raw
materials and resulting in an improved environmental footprint and a step change reduction in
airborne metal and dust emissions
91
. The progression of the first phase of the Transformation
into execution is dependent on the successful completion of pre-feasibility and bankable
feasibility studies. Nyrstar’s strategic solution involves transforming its Port Pirie operations
away from that of a primary lead smelter into a highly flexible poly-metallic processing and
recovery facility. Outdated process plant will be permanently decommissioned in favour of
state-of-the-art, best available technology. Specifically, the proven technology will replace the
outdated sinter plant with a state-of-the-art oxygen enriched bath smelting furnace, coupled to
an electricity cogeneration facility and a new sulphuric acid plant
92
. Application of fully
enclosed bath smelting technology will both deliver a step change reduction in emissions from
the site and allow a greater range of valuable metals to be recovered and produced. A potential
Stage Two would allow replacement of the existing blast furnace with a second bath smelting
furnace, further improving process efficiency. All these efforts in turn will ensure that the
environment in Port Pire will have a rapid reduction in lead poisoning.
88
National Environmental Protection Council (South Australia) Act, Section 7
89
Section 15
90
http://www.nyrstar.com/business-transformation/Pages/Port-Pirie-Transformation-Project.aspx (accessed
on 26th March 2016)
91
http://www.npi.gov.au/ (accessed on 26
th
March 2016)
92
Ibid
31
4.3 Comparison between Port Pirie and Owino Uhuru & Bangladesh Slums.
4.3.1 Form of Settlement
To begin with, it is important to note that Port Pirie is a formal settlement area
93
with organised
housing and drainage systems while Owino Uhuru and Bangladesh Slums are established
informal settlements
94
.This means that when it comes to land use and planning, Australia has
an upper hand in that they are able to set up well built housing for the residents and in that
cases the chances of getting contamination from the factory’s waste products are minimal.
Unlike the case of Owino Uhuru and Bangladesh where the informal settlement contributed to
more lead poisoning as there are no drainage systems in the area and residents of the area came
into contact with the waste from the smelter.
4.3.2 Legislation implementations and existing laws
The Port Pirie Lead Implementation Program (PPLIP) was established by the South Australian
Government in the response to lead poisoning
95
.This was done as early as the adverse effects
were felt while the Kenyan government has not taken any step in attempting to tackle the
situation in Owino Uhuru and Bangladesh. Kenya seems to solely depend on the judiciary to
solve the problem. The Australian human rights law does not recognize a right to a healthy
environment
96
but environmental protection is a human right established under international
law which the Australian follows religiously. On the other hand Kenyan law establishes the
right to a clean and healthy environment
97
4.3.3 Public Awareness and Response
Public awareness of the lead issues and education has occurred through the media in both Port
Pirie and Owino Uhuru & Bangladesh Slums. In Port Pirie however the residents are advised
on frequently washing their hand to prevent ingestion of lead. Even if this is not enough the
93
Desmond O’Corner , ‘Port Pirie Population and Settlement’
94
http://www.kenyabuzz.com/lifestyle/informal-settlements-in-kenya (accessed on 26th 2016)
95
Edward J Maynard ,The Port Pirie Lead Implementation Program , ‘The Future Focus and Directions’
96
Cantely- Smith , Rowena , ‘Human Right to a Healthy Environment’ in Paula Gerber and Melissa Castan
(eds) , Contemporary Perspectives on Human Rights in Australia’
97
Constitution of Kenya 2010 , Article 42
32
response is positive unlike in Owino Uhuru and Bangladesh Slums where the residents are just
waiting for justice from the judiciary as the contamination continues.
4.3.4 Future Plans and Direction
Australia having a history of lead poisoning has planned a way forward to deal with the disaster
of lead poisoning. The measures put in place include safe blood levels, reduction in smelter
emissions and safer household environments
98
while Kenya on the other hand has no plan yet
even in terms of disaster management with regards to lead poisoning. Legislation should be put
into place to bring about adequate planning and disaster management.
4.3.5 Nature of the lead Industrial Pollutants
Nyrstar has been able to deal with the problem of emitting solid and liquid lead waste in Port
Pirie, the only waste remaining is the lead fumes being released to the environment. Kenya’s
Owino Uhuru was faced with all sought of waste from the smelter, it release both solid and
liquid untreated waste to the environment and on top of that lead fumes to the environment.
4.4 International Legal Regulatory Framework on Environmental and Human Rights.
The 1972 Stockholm Declaration was the first international instrument to provide clear
recognition for the need to protect the environment. Both Kenya and Australia are parties to
this treaty are therefore required to meet its requirements. In 1982 the World Charter for
Nature
99
became the first instrument to adopt an egocentric approach to environmental rights,
recognising the rights of nature as distinct rights ‘regardless of their worth to man’
100
This
means that party states to this treaty have an obligation The World Charter provides for
procedural rights such as the environmental impact assessment process, and the right to
participate in decision-making
101
.Citizens of the member states are expected to have a say in
the activities that take place in their environment. They should be involved decisions that affect
the environment. Kenya is a state member to this treaty and its clear the residents of Owino
Uhuru and Bangladesh Slums were not involved in the deciding on whether the smelter should
come into being and their decision to have it closed done had been ignored for quite some time.
98
Port Pirie Future Focus ,’The way forward for us all’
99
United Nations World Charter for Nature GA Res 37/7, UN GAOR, 37
TH
Session, Supp No.51 at 17 ,UN DOC
A/37/51 (1982)
100
Ibid
101
Ibid
33
The 1992 Rio Declaration
102
built upon the World Charter for Nature and contains several
important procedural rights, such as the right to access information, the right to participation,
and redress. The Rio Declaration also addresses the principles of intergenerational equity by
obliging States to balance the right to development with ‘environmental needs of present and
future generations
103
, this was not the case in Owino Uhuru and Bangladesh Slums as they
seem to have ignored the fact that future generations would not have the luxury of enjoying the
environment as it is already polluted.
The most prominent instrument of environmental-human rights standards is the Draft
Declaration of Principles on Human Rights and the Environment
104
(Draft Declaration). The
Draft Declaration incorporates aspects of the above instruments including the principle of
intergenerational equity and the right to freedom from pollution. The 1998 Aarhus
Convention
105
is a regional instrument binding on much of the European Community while
occupying a much broader international standard for procedural environmental law
106
The
Aarhus Convention adopts the principle of intergenerational equity in its preamble, and
expressly provides for important procedural rights including the right to access information.
Had Kenya met the obligations of treaties it has signed to, then the disaster in Owino Uhuru
and Bangladesh Slums would not have happened.
4.5 Conclusion
In conclusion it is rights to say that Kenya has a lot to borrow from Australia. Australia has
less legislation that Kenya yet they are able to control the lead fumes and are still making efforts
to reduce the emissions. Port Pirie has had lead poisoning for over 100 years and for Owino
Uhuru and Bangladesh Slums, it only just began and the smelter was closed down. Nyrstar
continues to operate and it still emits lead fumes to the environment. Port Pirie has had its share
of pollution by the lead smelter for years and their decision to reform and clean the environment
has benefited the population. They do not rely solely on the judiciary to provide a solution but
102
1992 Rio Declaration on Environment and Development , UN Doc /CONF.151/26/26 (Vol 10)
103
Ibid
104
Universal Declaration of Human Rights, GA Res 217A(III) UN GAOR,3
rd
sees,183
rd
Meeting, UN Doc A/1810
(10
th
December 1984)
105
Convention on Access to Information, Public Participation in Decision Making and access to Justice in
Environmental Matters
106
Boer, Ben and Alan Boyle, ‘Human Rights and Environment’
34
they instead involve the community in tackling the problem and implementing laws by
themselves.
CHAPTER FIVE
5.1 Introduction
This chapter entails a summary of the whole research and recommendations on legal issues that
should change to fill in the loop holes that exist which will conclude the research.
5.2 Summary of the research
From the research the following inferences can be drawn; Lead is a harmful metal and the
natural or desirable level of lead in human beings is zero; lead is not used in any way in human
metabolism, so there is no tolerable amount. Residents of Owino Uhuru and Bangladesh have
long complained of chest pains, sneezing, nose irritation, difficulty in breathing, and increased
disposition to illnesses. Parents complained of their children having retarded intellectual
development, behavioural problems
107
, as well as most of the other problems listed above. All
these were said to be likely manifestations of overexposure to lead among the members of the
slum community.
With the evidence provided in the research, it is clear that children were the most affected in
Owino Uhuru and Bangladesh Slums. Although lead can affect children from every
socioeconomic stratum, socially and economically deprived children and children in low-
income countries carry the greatest burden of disease due to lead. Poor people are more likely
to be exposed to lead and to be at risk of exposure to multiple sources. They are more likely to
dwell on marginal land (near landfills and polluted sites), to live in substandard housing with
ageing and deteriorating lead-based paint, and to live near industry, sites where waste is burned
and heavy traffic. Also, lead smelting is used by marginalized populations to generate income
which was the case in the area. Socioeconomic factors are important predictors of exposure to
lead. Poor families are more likely to live near industrial plants that handle lead, such as battery
107
Addressing Lead Poisoning Exposure Problem in Owino Uhuru Slums Mombasa, Kenya (Part II) NGO: Eco-
Ethics International - Kenya Country: Kenya Date: May, 2012
35
recyclers or smelters. Also, they are more likely to dwell on polluted lands, to work in polluting
industries, or to live in older housing which makes them more susceptible to lead poisoning.
The effect of lead exposure was largely attributed to the fact that these two slum areas have
informal settlement which accelerated the poisoning which is characterised with poor drainage
system and dumping system.
Kenya is not the only state that has been affected by lead poisoning due to lead smelters but
Australia’s Port Pirie has the same problem. Lead poisoning was first recognized as a paediatric
disease in Australia over 100 years ago
108
hence over the years they have developed ways of
minimizing lead poisoning that is caused by the Nyrstar lead smelter in Port Pirie. Blame games
have been the norm of the people responsible for the setting up of the smelter in the residential
areas hence causing poisoning to the people. As nobody has assumed responsibility, the
residents of Owino Uhuru and Bangladesh Slums have continued to suffer with no one to turn
to. The judicial system has been slow to giving a verdict to the public interest case presented
to them. These resulted to prolonged lead poisoning as the residents still wait for a solution
from the government and the judiciary.
5.3 Recommendations
Lead Policy Formulation and Enforcement; there is need for lead policy formulation and
enforcement in Kenya. The relevant stakeholders should be involved at all levels during this
process. There are no specific laws about lead in Kenya, the EMCA1999, generalizes on the
management of toxic and hazardous wastes. However, there is an attempt by NGOs
109
working
on heavy metals and related issues to put pressure on the government of Kenya to adopt or
come up with something similar to the Residential Lead-Based Hazard Reduction Act of
2010
110
which has not yet come to a realization. Proper Urban Planning is a requirement for a
sustainable society and sustainable development
111
. There should be strict laws on zoning of
urban areas as either residential or industrial areas to avoid or rather minimize lead exposure
108
Children in ‘Lead’ | Action for Children in Conflict
109
Title of activity: Addressing Lead Poisoning Exposure Problem in Owino Uhuru Slums Mombasa, Kenya (Part
I) NGO: Eco-Ethics International - Kenya Country: Kenya Date: May, 2012
110
Ibid
111
Cofeck , ‘Lead Poisoning in Owino Uhuru Slums in Mombasa’
36
to humans and for the proper management of hazardous wastes. Laws regarding urban zoning
should be revised and a solution provided for the already formed informal settlement
Awareness creation and education- awareness creation and education on the dangers of lead to
the environment and human health should be intensified. Majority of the population around the
world are still ignorant on lead poisoning. Access to and use of information and education
materials should be improved. Successful stories of case studies should form a major part of
the education and awareness creation. Awareness on lead poisoning in Port Pirie
112
is adequate
as the residents have adequate knowledge of the happenings and they are actively involved in
preventing and reducing ingestion of lead.
Monitoring the operations of the factory; the operations of the factory should be closely
monitored to ensure their conformity with the relevant policies. The workers’ health should
also be closely monitored to check on the exposure to lead or any other harmful materials that
factories emit. Workers have a right to a safe workplace. The law requires employers to provide
their employees with safe and healthful workplaces and this should be brought to a realization
in all factories set up and assessments conducted often to ensure that the laws are followed.
The employers should also be held liable for any exposure to harmful materials to the workers
and they should compensate them even if the business is no longer in operation. The former
workers of the smelter should be compensated and for those who lost their lives , their families
should get an equivalent of the same. Mombasa County government should ensure all the
residents of Owino-Uhuru and Bangladesh are tested to check whether they have been exposed
to lead poisoning, and ensure those with traces of the dangerous metals in their blood receive
continuous medical treatment. The county should also conduct public consultations with the
affected residents so as to relocate them to safer grounds to avoid further contamination
Funding- in most development projects, very little amount of the investment goes to
environmental betterment. While the polluters, due to corruption practices, may escape the
principle of “polluter pays principle” there is need for more funding to environmental advocacy
institutions to have these industries monitored against their commitments. To have this realized
more funding will be required to be channelled in this sector. As the National Assembly
112
Lead Poisoning Case Management: Australia compared to the USA , LEAD Action News vol. 12 no. 3, May
2012 ISSN 1324-6011 Incorporating Lead Aware Times (ISSN 1440-4966) & Lead Advisory Service News (ISSN
1440-0561)
37
Environmental Committee directed
113
, firms involved in "risky" operations near residential
areas to deposit security bonds, which families who may be exposed to health hazards can tap
into to pay their medical bills. The relevant stakeholders should ensure that Gazettement of
regulations requiring companies operating near human settlements to deposit security bonds is
done. NEMA, tasked with assessing dangers posed to human and animal health before
companies set up factories in their neighbourhoods
114
, should in future consult other relevant
agencies before issuing licences to such firms. NEMA should only issue the greenlight for such
companies to operate when there is no objection from other agencies such as the public health
department. As NEMA can be sued, legal proceedings should be instituted as it did its duties
as mandated by EMCA. Laws regarding urban planning and zoning should be strictly followed
to avoid scenarios of having informal settlements. In cases where we have a change in land use
then laws should be made to cater for such changes and proper calculation done to avoid a
clashing land use. Just like the residents of Port Pirie have done, Kenyans should also follow
suit in trying to find a solution for them and not solely depending on the court system for a
solutions.
5.4 Conclusion
In conclusion, it is a matter of urgency that the rights of the people of Owino Uhuru and
Bangladesh Slums get compensated for the losses they have had due to lead poisoning. NEMA
on the other hand should be more enthusiastic in exercising the authority it has been granted
and should not abuse its powers. Law makers need to amend the industrialization policy to
bring about the aspect of preservation of the environment and the management of waste
resources.
113
Kenya :House Team Directs Firms to Deposit Security Bonds to Pay Pollution Victims
‘http://allafrica.com/stories/201603030265.html’ (accessed 6
th
June 2016)
114
Ibid
38
BIBLIOGRAPHY
LEGAL STATUTES AND POLICIES
Kenya’s
Constitution of Kenya 2010
Environmental Management and Coordination Act
Employment Act,2007
Work Injury and Benefits Act , 2007
Occupational Safety and Health Act, 2007
Children’s Act
Kenya’s Industrialization Policy
Australia’s
Environmental Protection Act 1993
Port Pirie Smelting Facility (Lead –in-air concentrations) Act 2013
National Environmental Protection Council ( South Australia) Act 1995
BOOKS
Dinah Shelton and Alexandre Kiss ; ‘Judicial Hand Book on Environmental Law’
Edward J Maynard ,The Port Pirie Lead Implementation Program , ‘The Future Focus and Directions’
Cantely- Smith , Rowena , ‘Human Right to a Healthy Environment’ in Paula Gerber and Melissa
Castan (eds) , Contemporary Perspectives on Human Rights in Australia’
Nyrstar Transformation Project (Australia Government Publications 2013)
Johan den H Review of Economic Theories of Regulation (Tjalling Koppmans Research Institute 2010)
39
JOURNALS AND REPORTS
Report of the Commission of Inquiry into the Land Law System of Kenya on Principles of a National
Land Policy Framework, Constitutional Position of Land and New Institutional Framework for Land
Administration by Charles Njonjo
A review of Kenya’s Industrialization Policy by USAID
‘Health Hazards in Africa’ World Health Organization.
‘History of Lead Poisoning in the World’, Dr Herbert L Needleman
Towards the prevention of lead exposure in South Africa: Contemporary and emerging
challenges’ Angela Mathee.
IPEN-ISIP Project , Lead Poisoning in Mombasa , Kenya
Mungatana , E.D (2004) : Policy Instruments for the lead phase out in Kenya : A research
project proposal: Centre for Environmental Economics and Policy Analysis in Africa ,
department of Agricultural Economics , University of Pretoria.
Gottesfeld P and Pkhrel, AK. Review : Lead exposure in battery manufacturing and recycling
in developing countries and among children in nearby communities.
Yasmin E Von Schirnding and Richard F Fuggle , ‘ A Study of the Distribution of Urban
Environmental Lead Levels in Cape Town, South Africa’ , Science of the Total Environment
188, no 1 (1996)
The Alliance to End Childhood Lead Poisoning (AECLP) and Environmental Defense (ED)
;Global Dimensions on Lead Poisoning : An initial Analysis (2002)
40
Helen Gavaghan , ‘ Lead, Unsafe at Any Level’ Bulletin of the World Health Organization 80,
no 1 (2002)
United Nations Environment Programme (UNEP) , New York , 2002 ‘Children in the New
Millennium’
WEBSITES
Weather and Climate : Mombasa , Kenya < www.weather-and-climate/Mombasa >
Kenya :House Team Directs Firms to Deposit Security Bonds to Pay Pollution Victims
‘http://allafrica.com/stories/201603030265.html
NEMA website www.nema.go.ke/
Owino Uhuru Archives www.monitor.co.ke/tag/owino-uhuru

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